.... this is an incomplete and inadeqaute rant, but I couldn't go to sleep withiout writing it. Night-night.

2600 DMCA APPEAL LOST

The decision has come down in the DMCA appeal in the 2nd Circuit Court of Appeals. 2600 lost. Bad news for free thinkers, programmers, researchers, budding independent artists, media mavericks and the kids, who will soon (and some already do) get courses in respecting copyrights and how it's bad to share knowledge and culture.

The text of the decsion is available in PDF format here, and a much cleaner and intelligible HTML version at the 2600 website.


A synopsis of the court's main findings can be found below. First however it is important to set the scene for those who may not be familiar with the case. This is not arcane stuff and affects us all.

The case arose following the publication of this article on the 2600 web site in Novemebr 1999. The article contained a link to the DeCSS code hosted at the site. Upon being enjoined from hosting the code they offered a list of hyperlinks to other sites mirroring the content of the offending file, and encouraged others to replicate the code on theiw own sites.

What is DeCSS?

DeCSS is a piece of software which can be used to access the raw data from Digital Versatile Disks encrypted using the Content Scrambling System developed by industry hardware giants in conjunction with the entertainment business. They established a company DVD CCA with exclusive rights to license the technology to DVD manufacturers. In the autumn of 1999, Jon Johannsen, a 16 year old Norwegian, authored DeCSS with two unknown collaborators. At the time his objective was to design a utility which would allow the playing of DVDs on a linux based machine, for which there were no authorised DVD players available.

After sending a blizzard of cease and desist letters in late 1999, the Motion Picture Association of America initiated legal action under the Digital Millenium Copyright Act against 2600 in the Southern District of New York, and trade secret cases in California and Connecticut against separate defendants.

Why are people so mad about the DMCA?


Because this legislation rewrites the existing legal system entirely in favour of the entertainment industry, expropriates users rights, rstricts reverse engineering - forcing users to surrender knowledge over what is going on in their machines and impairing innovation. Because the DMCA is copyright old-style, like 16th century england old, when the book licensing system was just a fancy formula for censorship. Because the DMCA attempts to arrogate all of the social surplus generated by digitalization to the media cartels who have been screwing both cultural workers and artists forever. Because the DMCA criminalises those who wish to hold onto their rights and not give in to the strong arms made buff through campaign finance contributions and many other reasons.

I could go on, but I'll spare you. Read here instead.

This is all about 'technical measures':

Technical protection measures basically refer to encryption systems which industry fantasizes as providing the new Jerusalem of Internet distribution, where they can continue to flog their wares without fear of further downstream distribution (sharing) by the purchaser. And they can cut out some of the reatiler's and their pesky cut of the revenues too. But all these encryptionsystems are really silly and inevitably fail, because if there worth breaking, enough people will concentrate their finest cerebral matter to the task, and succeed. Thus the music industry challenged cryptographic specialists to probe several proposed systems considered by the Secure Digital music initiative (SDMI). They were all cracked. Then when Prof. Ed Felten (a member of the winning team) proposed to deliver his results to an academic conference, he got a letter from the Recording industry Association of America threatening legal action under the DMCA. Industry's next stroke of henius appears to be the proposal to hardwire copyright protection into the computers themselves. But the folks on the ranch in Montana and a fondness for the Second Amendment may find that a bit much....

In addition, a Russian programmer Dimitri Sklyarov is currently under federal criminal prosecution under the DMCA for writing 'trafficking' a piece of software perfectly legal in his country of origin, residence and employment: Russia. Yet, when he came to speak at Defcon in Las Vegas during the summer, the FBI arrested him. The piece of software was Adobe e-book reader, used to lock up e-book's. One of their first sample lock-ins was the public domain work 'Alice in Wonderland'. I kid you not. People were and are pissed about Dimitri.

What are the specific provisions at issue?

Three provisions of the DMCA are implicated in the 2600 case:

(a)1201(a)(1)(A) = prohibition on acts of circumvention

(b)1201 (a)(2) = prohibition of trafficking in devices for circumventing
access control provisions

(c)1201(b)(1) = prohibition of trafficking in devices for circumventing
copyright protection measures

(a) did not come into force until late last year, but is the broadest provision in terms of its reach into the population. Simple passwrod systems as well as the weakest form of encryption are regarded as effective technological measures. Criminal punishments apply to transgressors.


(b) and (c) are designed to suppress the production and distribution of tools which enable users to get around encrypted containers, and get at the content. Whilst this can be done for the purpose of unauthorized copying, there are numerous uses of works which are fully legal under the legal doctrine of fair use. In addition most works contain aspects and elements which never qualify for any type of copyright protection, algorithms, facts, formerly copyrighted works now in the public domain due to the exhaustion of protection...

Whilst (c) at least maintains the veneer about being about copyright protection, (b) is an entirely novel creation of the cartel's fetid mind, constituting as it does an outright bar on unauthorised access, now an offense in itself even if no copyright infringement is committed.

Timeline:

January 2000: Preliminary injunction granted against 2600

August 2000: Federal district Court for the Southern District New York grants permanent injunction (Corley found to fall
within 1201 (a) (2)(A) by act of posting code and linking to that same
code).

May 2001: Appeal of the SDNY decsion in the Court of Appeals for the 2nd Circuit in New York

November 28 2001: SDNY decision upheld

Eric Corley; the publisher of 2600 and host of Off the Hook on New York's WBAI radio was once again demonised in the trial, his publication being characterised as follows:


"Representative articles explain how to steal an Internet domain name
and how to break into the computer systems at Federal Express." (p.17)

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Several arguments were offered in support of 2600s demands to overturn the appeal: one interpretive (that the statute should be interpreted narrowly and that 2600s behaviour was not prohibnited under such a reading); two constitutional (that the limited duration clause in the constitution was negated, that fair use rights were set to naught); and two first amendment arguments.

All were dismissed.

First Amendment

The first amendment claims are particularly interesting, not least because of the bar on hyperlinking, a decsion which will undoubtedly spark great alarm in some tech industry circles. The first amenm,ent claims were treated separately for both the posting of the code and the attachment of the link to the code. The judges found that code is indeed speech. Secondly they determined that computer code is entitled to protection under the FA. Third they decided that as the code/hyperlink contained a functional component and an expressive component, it should receive less protection than it would if it were 'pure speech':

"so the capacity of a decryption rogram like DeCSS to accomplish
unauthorized -- indeed, unlawful -- access to materials in which the
Plaintiffs have intellectual property rights
must inform and limit the scope of its First Amendment protection."

Fourth they declared that the governments intention passing the DMCA was to pritect a legitimate interest, viz. the 'property' rights of copyright owners, and that the Act targetted 'only' the functional component of the code/hyperlink, and had only an 'incidental' effect on speech interests.

So ya boo, sucks to you and your first amendment.

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Holy, holy Property Rights, Batman!

The trope of theft and property indeed is the very yarn which holds this rotten decision together. Copyright owners, once distrusted as monopolists who imposed high prices and poor quality on learning are embraced to the full bosom of the property cathedral. What were formerly limited private rights, are now absolutist property totems:

"In considering the scope of First Amendment protection for
a decryption program like DeCSS, we must recognize that the
essential purpose of encryption code is to prevent unauthorized
access. Owners of all property rights are entitled to prohibit
access to their property by unauthorized persons. Homeowners can
install locks on the doors of their houses. Custodians of valuables
can place them in safes. Stores can attach to products security
devices that will activate alarms if the products are taken away
without purchase. These and similar security devices can be
circumvented: Burglars can use skeleton keys to open door locks.
Thieves can obtain the combinations to safes. Product security
devices can be neutralized.

Our case concerns a security device, CSS computer code,
that prevents access by unauthorized persons to DVD movies. The CSS
code is embedded in the DVD movie. Access to the movie cannot be
obtained unless a person has a device, a licensed DVD player,
equipped with computer code capable of decrypting the CSS encryption
code.- In its basic function, CSS is like a lock on a homeowner's
door, a combination of a safe, or a security device attached to a
store's products.

DeCSS is computer code that can decrypt CSS. In its basic
function, it is like a skeleton key that can open a locked door, a
combination that can open a safe, or a device that can neutralize
the security device attached to a store's products. DeCSS enables
anyone to gain access to a DVD movie without using a DVD player."
(p.51-52)

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Happy Hacking.

For the commons.....

Free Sklyarov!